Mitchell v. Boardman

| Me. | Jun 29, 1887

Danforth, J.

In this case the petitioner in his individual capacity applies for a writ of mandamus to compel the respondent, the judge of the police court of the city of Belfast, to issue a, warrant of search and seizure upon his complaint in due form under oath. It has for a very long time been well settled law in this state that "a private individual can apply for this remedy only in those cases, where he has some private or particular interest to be subserved, or some particular right to be pursued or protected by the aid of this process, independent of that which he holds in common with the public at large. It is for the public officers, exclusively to apply when public rights are to be subserved.” Sanger v. Co. Com. 25 Maine, 291-6. No private right, distinct from that of the public, is involved here. It is the refusal of a public officer to act in a public matter; an officer of the government in a matter which relates to the enforcement of a public law, and if he has violated his duty or refuses to perform it, there is other remedy more appropriate and efficient than this. The cases cited by counsel are unlike this, and in those cited from our own state this question was not raised.

Were it otherwise, in this case no available remedy would result from granting the writ. The warrant asked for, if issued, could only be against such liquors as were in the building described at the date of the complaint. If the officer were to levy it upon any other, he would do so at his peril, and so long a time has elapsed since the complaint was made and must in cases of this kind always elapse before a judgment can be obtained, that the issuing of the warrant would be a useless act, and more especially in this case as the building described in the complaint has been destroyed by fire, a historical fact of which the court will take judicial cognizance. Under these facts the court will not grant a mandamus even if the petitioner were otherwise entitled. It would be an idle and useless ceremony. Williams, Petr. v. Co. Com. 35 Maine, 349; Woodbury v. Co. Com. 45 id. 304; Dane, Pet. v. Derby, 54 id. 102.

Writ denied.

Peters, C. J., Walton, Libbey, Emery and Haskell, JJ., concurred.